Property Outline

Property: legal relationship among people as to a thing Bundle of rights 1. Right to possession 2. Right to use 3. Right to exclude 4. Right to alienate 5. Right to destroy Common law civil remedies Real property Ejectment Trespass monetary damages! Personal property Reple"in reco"ering personal property! Tro"er monetary damages! 5 theories of private ownership 1. #ccupation$possession 2. %a&or moral right to o'n things she produces or ac(uires through la&or 3. )ontract theory pri"ate property is the result o* a contract &et'een indi"iduals and the community 4. +atural rights 5. ,ocietal utility la' should promote maximum *ul*illment o* human needs and aspirations a. %egal protection o* pri"ate property does this &. -llo's citi.ens to participate in go"ernment as right holders/ not supplicants Right to publicity as a property right )ardtoons ". 0%12 Right o* pu&licity: right o* a person to control the commercial use o* his or her identity 2u&licity rights are a *orm o* property protection that allo's people to pro*it *rom the *ull commercial "alue o* their identities Ways to obtain property 1. 3oluntary trans*er purchase/ gi*t/ trade/ &y 'ill/ intestate! 2. Eminent domain go"ernment ac(uisition 'ith compensation 3. )on(uest applies to pre"iously o'ned territory so"ereign nations! 4. )apture applies to pre"iously uno'ned items indi"iduals! 5. 4isco"ery applies to pre"iously uno'ned territory so"ereign nations! 5. 6inding applies to pre"iously o'ned items indi"iduals! 7. )reation intellectual property rights8 re'ard *or *ruits o* your la&or 9. -d"erse possession )-+#Eh

Ownership based on possession Capture

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2ossession re(uires &oth physical control mani*ested po'er in relation to the o&ject! and intent to control$exclude 2opo" ". :ayashi ; 0odi*ied Rule o* )apture <here an actor underta=es signi*icant &ut incomplete steps to achie"e possession o* a piece o* a&andoned personal property and the e**ort is interrupted &y the unla'*ul acts o* others/ the actor has a legally cogni.a&le pre>possessory interest in the property ?uali*ied right to possession )an support a cause o* action *or con"ersion 2ierson ". 2ost ; @eneral Rule o* )apture - person 'ho o'ns a 'ild animal common resource li=e oil or gas or a&andoned property! once it has &een ta=en into possession &y restricting its natural li&erty and &ringing it 'ithin the captorAs certain control 0ere pursuit is not enough 0ust mortally 'ound or capture @hen 'hale case! )onstructi"e possession: people 'ho *ound 'hale on &each didnAt get to =eep it &eached &ecause it 'as harpooned Rules *or possession may &e &ased on custom Bas much control as its nature and situation permitC

Ownership based on FINDIN

- *inder o* lost property holds it against all except the right*ul o'ner Dand a prior possessorE. !ost property 1FG *inderAs *ee True o'ner did not purpose*ully intend to lea"e property in the location 'here it 'as *ound not li=ely to &e *ound &y the true o'ner 6inder has right to possess against all the 'orld except true o'ner or pre"ious possessors "islaid property True o'ner purpose*ully intended to lea"e property in the location 'here it 'as *ound &ut *orgot H* true o'ner doesnAt return 'ithin a reasonable time the property &ecomes that o* the o'ner o* the premises 6inder ac(uires no rights unless also o'ner o* property #bandoned property True o'ner purpose*ully intended to lea"e property in location 'here it 'as *ound/ &ut it is in such a condition that it is apparent that she has no intention o* returning to claim it Hntends to a&andon it8 "oluntarily relin(uishes it 6inder has possession o"er all/ including pre"ious o'ner $reasure trove Dpretty o&soleteE )oins or currency hidden &y o'ner8 element o* anti(uity8 proceeds may go to state #'ner dead or undisco"era&le 6inder I lando'ner e"en i* trespasser 6inders RJ%E, 1. )onstructi"e possession %ando'ner 'here property *ound is not a true o'ner &ut may &e considered a prior possessor8 &uried$em&edded$attached to her property
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2. ,tolen property a. 0ajority: i* true o'ner not in picture/ thie* still prior possessor I *inder &. 0inority: unclean hands8 not entitled 3. Trespasser not entitled unless treasure tro"e 4. Employers earn right to *ound property 'hen *ound &y employees in their regular course o* duties acting as agents! 5. 2ri"ate "s. pu&lic a. 0ore pri"ate/ more li=ely to &e BmislaidC and go to lando'ner as opposed to *inder i.e. mall "s. someoneAs home &. 2u&lic more li=ely to &e considered lost %ailments & Right*ul possession o* personal property &y one 'ho is not the true o'ner. RJ%E: a &ailment arises 'hen personal property o* the &ailor is deli"ered into the exclusi"e possession o* the &ailee and the &ailee accepts the property8 no &ailment i* article is concealed or &ailee isnAt a'are o* it KKmutual assent 'ecoverin( under %ailment $heory -. -lleging a cause o* action 1. Express or implied consent to create &ailment 2. 4eli"ery o* &ailment in good condition 3. -cceptance o* property &y &ailee 4. 6ailure to return/ or re>deli"ery in damaged condition 1. -nalysis approach 1. Hs there a &ailmentL mutual assent8 deli"ery$acceptance 2. ,cope o* &ailment ; 'hat is includedL 3. ,tandard o* lia&ilityL ; go through all three rules 4. <ho has &urden o* proo*L i. <hen prima *acie elements o* a &ailment are esta&lished/ there is a presumption o* 4As negligence or con"ersion i* property is not returned )tandard of !iability -. Relationship &et'een &ailor$&ailee 1. 1ailor solely &ene*its$&ailee does not &ailee can only &e lia&le through a proo* o* gross negligence 2. 0utually &ene*icial reasona&le care a. 0arina$&oat doc=s is lessor$lessee unless stored in dry doc= &. 2ar=ing lot situation &ased on amount o* control/ might need *ull trans*er 3. 1ailee sole &ene*iciary$&ailor does not &ene*it &ailee can &e lia&le e"en through proo* o* slight negligence 1. )are commensurate to ha.ard: ordinary care regardless o* ho' &ailment 'as created ). ,trict lia&ility: i* &ailee sells or deli"ers item to another 'ithout &ailorAs consent e"en i* acted reasona&ly! &ailee still lia&le +ot li=ely to apply to a *inder in"oluntary &ailee! or misdeli"ery o* pac=ages Involuntary bailees 6inder: depends on jurisdiction ,tandard may re(uire gross negligence/ &ad *aith or reasona&le care %andlord$tenant
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1ailment i* landlord e"icts tenant and assumes possession o* tenantAs items 1ailee &ene*its only slight negligence under *irst rule o* standard o* lia&ility! 0isdeli"ered pac=ages 0ost li=ely not strict lia&ility @ross negligence or ordinary care *+culpatory clauses ,mall print contracts Jnconsciona&leL 1argaining po'erL ,ometimes 'or=8 sometimes in"alid

#D,*')* PO))*))ION
4isseisor: ad"erse possessor8 disseisee: displaced o'ner *lements C#NO*h 1. )ontinuous 2. -ctual 3. +otorious 4. #pen 5. Exclusi"e 5. :ostile ,#%L TaxesL some jurisdictions re(uire you to pay taxes ; )-! Continuous 2attern o* occupation li=e that o* a true o'ner Tac=ing: adding together periods o* occupation o* ad"erse possessors 0ust &e pri"ity in estate "oluntary trans*erring in 'riting/ orally more di**icult! H* -2 dies and title right! con"eyed success*ully to the next -2/ pri"ity #M Actual -cts o* possession normal *or a true o'ner under the circumstances 4o neigh&ors thin= youAre the o'nerL )olor o* title: Nou are in possession 'ith an in"alid deed H* you occupy under the de*ecti"e deed/ you get constructi"e possession o* all the land descri&ed in the deed so long as it is contiguous/ o'ned &y the same person/ and not unduly large not multiple lots helps! E"en i* you only ad"ersely possess part o* it/ you get all o* 'hatAs in the deed Notorious and Open #ccupation signi*icant enough to put o'ner on notice )ommunity testimony$repute8 selling or renting it )haracter o* land must &e considered Exclusive +o one else in possession$occupation 'ithout permission o* possessor Exclusi"e o* o'ner and strangers Ooint ad"erse possession #M #uster 'ords or acts e"incing claim o* separate o'nership -d"erse possession against cotenant 2resumption is cotenants are not in ad"erse possession o* each other
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1urden o* proo* to sho' the ouster

Hostility <ithout consent o* o'ner8 not holding land recogni.ing someone else as true o'ner 3 di**erent approaches 0ajority! #&jecti"e "ie': 'hether the possessor acts to'ard the land as i* she o'ns it regardless o* intent to ad"ersely possess 1ad *aith: claimants must ha"e intent to ad"ersely possess and ha"e the su&jecti"e &elie* that they are not the o'ners @ood *aith *e' courts!: ad"erse possessor mista=enly &elie"es itAs his land 'hen it is not ; color o* title helps here )tatute of limitations 0ust meet all elements *irst ,#% &egins )an tac= ad"erse possessors *or ,#% as long as "oluntary trans*er Hnterruption/ a&andonment pro&a&ly ha"e to restart ,#% Tolling ,uspend running o* statute i* o'ner has a disa&ility at the time the elements are *irst met in *a"or o* possessor 4isa&ility/ prison/ under age/ military sometimes! 4isa&ility must &e in place 'hen ,#% &egins +o tac=ing o* disa&ilities e"en i* the person you trans*er title to also has a disa&ility/ ,#% &egins )an only happen *or 2F years &e*ore ,#% &egins #dverse possession of personal property ; T'o approaches/ &oth not so li=ely 0ust satis*y all elements o* -2 &ut there is a pro&lem 'ith open and notorious 4isco"ery rule: ,#% &egins 'hen true o'ner/ through exercise o* due diligence/ =ne' or reasona&ly should ha"e =no'n cause o* action P identity o* possessor 4ue diligence e**orts must &e consistent 'ith trade practices 6raudulent concealment ; de*endant 'ho has &y deceit or *raud pre"ented potential plainti** *rom learning o* a cause o* action cannot use ,#% to &ar action

"ethods of transferrin( property

%a' does not li=e restraints against aliena&ility ,eisin: ancient ceremony/ replaced &y the deed/ o* trans*erring o'nership o* real property Inter vivos 0ostly sales @enerally in *ee simple a&solute %ease/ tax deed/ patent <ith real property: statute o* *rauds trans*er must &e in 'riting Hn"oluntary trans*er Eminent domain/ sheri**As deed *oreclosure sale!/ court decree speci*ic per*ormance or (uiet title!/ ad"erse possession #fter death -. Intestate ,tatutory trans*er o* real and personal property at or a*ter o'nersA death in the a&sence o* a 'ill <e donAt =no' identi*ication o* heirs until person dies intestate 4escendants I ancestors and collaterals &rothers/ sisters/ aunts/ etc.!

2er stirpes ; an estate o* a decedent is distri&uted per stirpes i* each heir is to recei"e an e(ual share. H* one child is dead/ their share di"ided among their heirs. 2er capita ; mem&ers o* the same generation may inherit di**erent amounts i.e. pre>deceased children heirsA issues may not recei"e inheritance 1. Will -pplies to situation that exists at time o* death/ not time that 'ill is made ,tate la' controls 'ill disposition <here domiciled at time o* death ,tate 'here real property is 6orced share Re"ocation o* 'ills 2artial re"ocation: codicil supplement to explain/ add/ su&tract/ etc.! +e' 'ill should ha"e express clause re"o=ing all prior 'ills and codicils i* desired 1y operation o* la': marriage and di"orce <ill su&stitutes Ta=ing title as joint tenancy right o* sur"i"orship: property passes to sur"i"ing spouse Trust: legal o'nership trans*erred to a trustee &y settler to &e held *or the &ene*it o* another 1ene*iciary holding e(uita&le title Jsually income producing and trustee directed to pay income to &ene*iciaries and pay o"er principal at some point ,ettler may retain po'er to re"o=e trust during li*e

PRESENT AN !"T"RE ESTATES

Three types o* *reehold estates: *ee simple/ *ee tail/ li*e estate +on>*reehold estate: leasehold Fee simple a&solute or de*easi&le! ; Hn*inite estate/ all trans*era&le &y deed/ 'ill/ intestacy 1. 6ee simple a&solute a. 0ost complete *orm o* o'nership &. -liena&le/ inherita&le/ de"isa&le c. Traditional language creating: Bto - and his heirsC &ut most states no' recogni.e Bto -C as creating an 6,2. 6ee simple de*easi&le a. Fee simple determinable i. Ends automatically upon e"ent happening matters *or ,#% &ecause grantor has a long time/ i* not unlimited/ to re>enter! ii. # to - so long as premises are not used *or commercial purposes iii. # to - untilQ # to - during the time thatQ i". )ondition may ne"er occur: potentially in*inite ". 6uture interest: possi&ility o* re"erter grantor only! &. Fee simple subject to a condition subsequent i. Estate 'hich &ecomes "ulnera&le to termination at grantorRs election8 doesnRt happen automatically upon the condition occurring
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purposes/ &ut i* premises are e"er used *or such purposes the grantor o* his heirs shall ha"e right to re>enter and ta=e possession. #r: # to - pro"ided thatQ i". 6uture interest: right o* entry grantorRs right! c. Fee simple subject to an executory limitation i. # to - and his heirs so long as premises are used during -Rs li*etime *or residential purposes/ and i* not so used then to 1 and his heirs ii. # to - and his heirs/ &ut i* 1 marries )/ o"er to 1 and his heirs iii. 6uture interest: executory interest !inite possessory estates ; they 'ill end8 must &e *ollo'ed &y re"ersion &ac= to #! or remainder to a 3rd party! 1. Fee tail a. )reating language: Band the heirs o* his$her &odyC &. 0ostly a&olished in the J, c. ,eries o* li*e estates: lineal descendants$direct heirs d. 4uration: Expires 'hen -As direct line dies out i. # >>>I - and the heirs o* her &ody ii. # >>>I - and the heirs o* his &ody &y < 6ee tail special! iii. # >>>I - and the male heirs o* his &ody 6ee tail male! i". # >>>I - and the *emale heirs o* his &ody 6ee tail *emale! e. Trans*era&le/ &ut not de"isa&le &y 'ill i. Hnterest - recei"es is limited to lineal descendants ii. Hnter "i"os: can sell the interest 'hile ali"e &ut interest re"erts to -Rs heirs 'hen he dies iii. Jnreasona&le restraints on alienation are against pu&lic policy and 'ill &e "oid/ i.e. restraining against 'ho someone marries 2. !ife estate a. )reating language: Bto - during his li*eC or Bto - *or li*eC &. - li*e tenant is only o&liged to pay interest on a mortgage/ not principal c. %i*e tenant not o&ligated to insure a remainder interest not o&ligated to pay insurance premiums on *ull "alue o* land$&uilding! d. %i*e tenants do not ha"e to pay *or permanent impro"ements/ such as the cost o* replacing a 'orn out *urnace e. 2er autre "ie: li*e estate measured &y the li*e o* someone other than the grantee i. # - *or the li*e o* 1 ; i* - dies &e*ore 1/ -As heirs hold the property until 1 dies/ then it re"erts &ac= to # *. %i*e estate de*easi&le i. 6inite estates are only *ollo'ed &y re"ersion or remainder unless it is a li*e estate de*easi&le/ in 'hich case itAs *ollo'ed &y a possi&ility o* re"erter/ a right o* re>entry/ or an executory interest in addition to the re"ersion or remainder ii. # - *or li*e/ &ut i* - *ails or to pay taxes/ insurance/ or =eep &uilding in repair/ then estate shall terminate and # 'ill ha"e the right to re>enter 1. - has a li*e estate su&ject to condition su&se(uent and # has a right o* entry &ecause could happen &e*ore -Rs li*e ends! and # has a re"ersion in *ee simple a&solute
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ii. @rantor is limited &y ,#% as to 'hen he can re>enter a*ter e"ent iii. # >>I - on condition that premises are not used *or commercial

# - *or li*e/ &ut i* - *ails to use the land *or residential purposes/ then to 1 *or li*e 1. - has a li*e estate su&ject to executory limitation and 1 has an executory interest in a li*e estate and # 'ould ha"e a re"ersion in *ee simple a&solute 2. 1 does not ha"e to use the land *or residential purposes8 'ords o* limitation are S1 *or li*eS i". # - *or li*e/ then to 1 1. - has a li*e estate/ 1 has a remainder. 3. !easehold non>*reehold interest landlord$tenant relationship! >> only non>*reehold estate 1. Estate *or years$term years. # >>I - *or three years 2. 2eriodic tenancy yr to yr/ mo to mo! # >>I - *rom month to month &eginning ,eptem&er 1/ 2F1F
iii.

Rules *or remainders +o &uilt>in time gap &et'een termination o* *inite estate and remainder ta=ing possession executory interest )anRt cut short *inite estate 1rea=ing the rules # >>I - *or li*e/ then to 1 doesnRt &rea= any rules! # >>I - *or li*e/ and one month a*ter -Rs death/ to 1 - has a li*e estate @oes &ac= to # *or one month > he has a *ee simple su&ject to executory limitation 1 has an executory interest not remainder! # >>I - so long as the land is not su&di"ided/ and i* it is/ then to 1 - has a *ee simple su&ject to executory limitation 1 has an executory interest in *ee simple a&solute # >>I 1/ to ta=e possession upon 1Rs 21st &irthday # has a possessory interest su&ject to executory limitation 1 has an executory interest in *ee simple a&solute Protecting future interests # unproductive property !aw of Waste Jnreasona&le use o* Dor change toE property &y o'ner o* possessory estate 'hich reduces "alue o* Dor other'ise impactsE a *uture estate -dded Dthese 'ordsE &ecause o* ameliorati"e 'aste Types o* <aste: Voluntary waste: acts &y possessor 'hich 'ill decrease "alue o* *uture estate Permissive waste: *ailure &y possessor to ma=e reasona&le repairs to maintain property -llo'ing property to deteriorate %andlord$tenant > no duties to =eep up the property in modern times &ut say i* ceiling is lea=ing must put trashcan under lea= to protect *loor 6ailure to maintain causes much greater deterioration Ameliorative waste: demolition or su&stantial alteration &y li*e tenant o* a structure on premises that results in an increased "alue o* the real estate
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,till a change/ still considered 'aste 0ajority 3ie': li*e tenant or tenant *or a su&stantial term o* years may ma=e extensi"e alterations in/ or demolish and replace/ structures in order to ena&le a reasona&le use o* property/ pro"ided such changes do not diminish "alue o* re"ersion or remainder Exception is historical "alue Remedy: injuncti"e relie*/ damages 1alancing interests Rule: The nature o* a *uture estate impacts the determination o* unreasona&leness o* possessory use and remedy a"aila&le *or 'aste #'ner o* de*easi&le *ee can &e charged *or 'aste only i their conduct is unconsciona&le and a reasona&le pro&a&ility exists that the *uture interest 'ill &ecome possessory H* *uture interests unli=ely to ta=e/ going to ha"e to pro"e extremely unreasona&le use to stop possessory estate :older o* *uture interest is entitled to corpus intact and li*e estate gets income 0ay thin= a&out this in terms o* a trust: youR"e got a pot o* money and the current possessory estate can get income *rom pot o* money &ut same pot o* money must end up 'ith *uture interest holder

Partition of concurrent interests 2artition is an action 'hich allo's concurrent o'ners to separate their rights 0ajority "ie': - partition under common la' only applies to concurrent interests/ not successi"e interests Partition in !ind: physically di"iding the property Partition by sale: selling the land and di"iding the proceeds H* sale is ordered/ ho' does court di"ide sale proceeds &et'een li*e tenant and remaindermanL Oudicially created trust 4istri&ute sale proceeds immediately Time "alue o* money T right to recei"e a sum o* money in the *uture is not 'orth as much as the right to recei"e the same amount today #nly applies to successi"e interests minority jurisdictions! -ction *or partition has to happen &e*ore ouster or 'ithin ,#%

CONC"RRENT ESTATES
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"oint tenancy To - and 1/ not as tenants in common/ &ut as joint tenants 'ith right o* sur"i"orship -t common la'/ this 'as the de*ault8 modernly/ courts presume tenancy in common unless expressly stated The sur"i"or in joint tenancy o'ns in 6,- unless it 'as created 'ith a limited duration Four unities: #ime: interests o* the joint tenants must arise at the same time #itle: interests must &e ac(uired 'ith same instrument Interest: tenants ac(uired identical interests Possession: common right o* possession and enjoyment
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%ac= o* any o* these unities results in the creation o* a tenancy in common )ourts today o*ten discount the signi*icance or necessity o* these technical ingredients ; must still must =no' them *or exam H* you are in a jurisdiction that doesnRt re(uire *our unities anymore/ you ha"e to *ocus on the intent o* the con"eyor at the time o* con"eyance Each has the right to possess the 'hole > undivided interests H* one person has title and then marries: 'ants to hold property as joint tenancy ,tra' person some courts! can create a joint tenancy in this situation ,ome jurisdictions say this is &.s. )annot &e de"ised &y 'ill or descent &ecause no *uture interests -"oids pro&ate8 'ill su&stitute <hen more than two joint tenants 3 or more/ a con"eyance &y one o* them destroys the joint tenancy only as to that conveyor$s interest. The other joint tenants continue to hold in joint tenancy as &et'een themsel"es/ 'hile the grantee holds her interest as a tenant in common 'ith them )everance Ooint tenant cannot &e pre"ented *rom unilaterally con"eying her interest and se"ering the joint tenancy *ree to alienate! Jnilateral con"eyance can &e a secret *rom the other joint tenant Jnless limited &y statute/ such as in )- ; you must record it8 i* you donAt/ you lose your right o* sur"i"orship &ut they do not -llo'ed to partition/ &ut eliminates right o* sur"i"orship: court may deny partition 'here it 'ould &e ine(uita&le 0odernly/ leases do not se"er joint tenancies in all jurisdictions ; just suspends it *or the length o* the lease )ommon la'/ i* one tenant leases their interest/ joint tenancy se"ered and it 'ould &ecome a tenancy in common ,plit 'hether OT sur"i"es death o* lessor tenant 0ortgage$4eed o* trust #itle theory: se"ers OT &ecause &an= holds legal title 1F states! ,ome jurisdictions: once mortgage paid o**/ OT reinstated %ien theory: does not se"er unless *oreclosure is completed 0ortgage sur"i"es death o* mortgagor/ sur"i"or ta=es it su&ject to lien ; split jurisdictions on 'hether no' a**ects entire interest or just mortgagorAs original hal* :arms rule: mortgage disappears at death o* mortgagor 4i"orce ; majority "ie': does not se"er OT 4i"orce agreement executed &e*ore actual di"orce 'ill not se"er BOoint tenancy 'ill *ull rights o* sur"i"orshipC ; special language recogni.ed &y 0H and *e' other states actually creates a joint li*e estate 'ith dual contingent remainders8 right o* sur"i"orship is actually a *uture interest that is indestructi&le Either original joint tenant can trans*er li*e estate and$or contingent remainder Ooint tenants contract to sell interest to V8 - dies &e*ore executed )ommon la': the contract unexecuted does not se"er the joint tenancy8 1 gets all proceeds and only 1 has to sign deed
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#ther courts: contract se"ered joint tenancy8 as tenants in common/ -As estate gets W interest and -As estate has to sign deed 'ith 1 /oint tenancy ban0 accounts #rue joint tenancy 2erson puts money in &an= 'ith another personAs name on it: must ha"e intended to gi"e them hal* the money8 e(ual interests ; all parties ha"e a right to current *unds existing as 'ell as a right o* sur"i"orship 2resumption is cotenant contri&uted e(ually i* married8 unmarried people 'ith joint &an= account 'ill get proportion o* deposits 'hen se"ered <ithdra'al o* more than *air share may e(ual a se"erance Payable on death account <ill su&stitute8 depositor creates account in her name only/ &ut paya&le on death to a named sur"i"or &onvenience account +oncontri&uting party does not ha"e right o* sur"i"orship or right to use account *or personal use &ut may dra' on it to pay otherAs &ills *or con"enience #otten trust 4epositor ma=es deposit in her o'n name/ in trust *or another )reditors generally ha"e access to e"erything you ha"e access to 1. #enancy in common 0odern de*ault +o right o* sur"i"orship Hnterest o* a tenant in common is *reely aliena&le inter "i"os/ and i* not con"eyed in her li*etime/ passes at her death to her de"isees or heirs #ne unity o* possession re(uired H* one co>tenant &uys property in a tax sale/ he is presumed to &e doing it on &ehal* o* all co>tenants. The other co>tenants then ha"e a responsi&ility to pay their share to that co> tenant 'ithin a reasona&le time or they *or*eit their interest Hn a minority jurisdiction/ co>tenant is allo'ed to &uy it outright in a tax sale

Rules *or Ooint Tenancies and Tenancies in )ommon Right to possession o* the 'hole +either can act to prejudice others -greements not to partition are allo'ed i* *or a reasona&le amount o* time Jnreasona&le T restraint on alienation 2artition &y sale occurs only 'hen cannot &e con"eniently partitioned in =ind H* one partyAs interests 'ill &e prejudiced &y sale can stop it: Economic "alue is a *actor &ut not exclusi"e ,entimental attachment %ongstanding *amily o'nership 1usiness on the property )annot get money *rom other tenants *or impro"ements &ut you can &e a'arded *or impro"ements during partition Owelty: it is almost impossi&le to di"ide a land 'ith e(ual "alue among cotenants/ so 'hen one 'inds up 'ith a more "alua&le tract/ must pay o'elty *ee to less *a"ored
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cotenant ideally a one>time payment: splitting interests/ 'al=ing a'ay *rom it Ouster: 'rong*ul exclusion &y one cotenant -d"erse possession: assertion o* a&solute o'nership "esne profits: right to share o* reasona&le rental "alue 'hen ousted &ut &urden on ousted cotenant to pro"e ouster Hn a minority o* jurisdictions/ a co>tenant not in possession can reco"er *air rental "alue *rom co>tenants in possession ; &ut generally/ you need to sho' an ouster #ction for accountin(: i* any o* the cotenants are collecting rent *rom a lease/ other cotenants can demand their *air share o* the money recei"ed as long as paying into the carrying costs 6iduciary duties: cotenants must act *or the &ene*it o* all ; canAt purchase at tax sale )layer statutes: upon death o* the "ictim/ total estate passes entirely to the person 'ho 'ould ha"e ta=en it i* the slayer had predeceased the "ictim #ction for contribution -ll tenants ha"e duty to pay carrying costs: taxes/ insurance/ mortgages except 'hen there is a cotenant in sole possession H* co>tenant paying carrying costs in sole possession/ only entitled to carrying costs *rom co>tenants not in possession i* costs are more than *air rental "alue Repairs: generally/ no contri&ution *or necessary costs/ &ut may &e set o** in an action *or accounting or partition 0odernly necessary repairs may &e considered carrying costs to help maintain property "alue Improvements: no contri&ution re(uired/ &ut impro"ing tenant gets a'arded in partition and action *or accounting i* impro"ements increased "alue o* rent

$AR%TA& %NTERESTS
$enancy by the entirety )an exist only &et'een hus&and and 'i*e ; in some common la' jurisdictions/ it arises presumpti"ely in any con"eyance made to hus&and and 'i*e Right o* sur"i"orship and *our unities re(uirement +ot se"era&le >> )annot partition )- does not recogni.e tenancy &y the entirety &ecause community property state 0anagement and control P creditorsA rights Ki* can con"ey R#,/ creditors can attach8 i* de&tor con"eys R#,/ creditors can sue *or *raud 1. @roup 1: )ommon %a' : can alienate interest/ &ut <As right o* sur"i"orship is indestructi&le and only :As creditors can attach 2. @roup 2: 1oth : P < can con"ey use or right o* sur"i"orship/ &ut creditors cannot attach until death o* nonde&tor spouse 3. @roup 3: 0ajority : P < ha"e e(ual rights/ &ut neither can con"ey any interest and creditors cannot attach anything 4. @roup 4: : P < cannot con"ey use/ &ut can con"ey contingent right o* sur"i"orship/ 'hich
12

creditors can attach i* nonde&tor dies *irst 5. @roup 5: : P < ha"e a tenancy in common *or joint li"es 'ith indestructi&le rights o* sur"i"orship and may con"ey these rights and creditors can attach &oth Rights at di"orce Tenancy &y the entirety either con"erted to OT or tenancy in common/ depending on jurisdiction 0odernly/ e(uita&le distri&ution o* marital property Termination 1y death/ mutual agreement/ execution &y a joint creditor o* &oth hus&and and 'i*e 'i(hts at death -t death ; rights o* sur"i"ing spouses historically 4o'er: <ido' gets a li*e estate in 1$3rd o* land in 'hich the hus&and 'as seised at any time during the marriage ; unless 'i*e released her do'er rights +o re(uirement there &e issue children! 0ay &e re(uired to elect &et'een :As 'ill and do'er )urtesy: <ido'er gets li*e estate in all lands o* 'hich 'i*e 'as seised at any time during marriage ; unless hus&and released his curtesy rights <i*e must ha"e had issue &y : &orn ali"e 0ay &e re(uired to elect &et'een <As 'ill and curtesy i* re(uired 0odern modi*ications: 4o'er and curtesy mostly a&olished to address concept o* e(uality 'ithin marriage H* concepts are retained/ *ractional shares ha"e &een made e(ual and interest gi"en is a 6,-/ not a li*e estate or a portion o* a li*e estate <i*e is no' considered an heir and may &e re(uired to elect &et'een do'er and intestate share Forced or *lective share Typically allo's 1$3 to W o* estate to go to sur"i"ing spouse/ &ut must elect this share or ta=e under 'ill <ill su&stitutes set up trusts/ gi*ts to children! a"oid protection o* sur"i"ing spouse or may result in o"er>recognition o* sur"i"ing spouse Augmented estate ; includes not only property o'ned &y decedent at death/ &ut "alue o* property decedent has disposed o* during marriage in a 'ay that is a 'ill su&stitute 2recludes disinheritance &y 'ill su&stitutes and o"er>recognition o* sur"i"ing spouse ,ome jurisdictions :ypo: augmentation helps unprotected spouse :us&and at death : X5FF= 1lac=acre/ X5FF= cash : during li*e con"eys 1lac=acre to daughter/ 'i*e doesnAt sign :Rs 'ill >>I 1$4 o* my property to </ rest to ,ierra )lu& -ll thatAs in his estate 'hen he dies is X5FF= cash '$o aug.! <i*e gets X125= &ut she has a right to ta=e that under the 'ill or ta=e a 1$3 interest under the *orced share statute/ X157= With augmentation Estate is 'orth X1m: includes inter "i"os 1lac=acre con"eyance < 'ill get X25F=/ in the 1$4th part o* his 'ill
13

#r she can get 1$3 under *orced share: X333= :ypo: augmentation helps a"oid o"er>protection o* spouse same XY! : 'hile ali"e: 1lac=acre to 'i*e8 'ill: daughter gets e"erything <ithout augmentation/ under the 'ill she gets nothing Jnder *orced share/ she gets 1$3 o* X5FF= plus 1lac=acre <ith augmentation/ *orced share election o* 1$3 only gets 1$3 o* that million dollars/ daughter gets 2$3 o* dadAs estate < 'ould ha"e to sell 1lac=acre 2omestead 'i(hts ,tate exemption to protect certain property *rom creditors and trans*er &y spouse 'ithout consent Typically limited to d'elling and land/ and limited to a stated "alue :omestead must trans*er to sur"i"ing spouse and children/ not creditors Community property @enerally e(ual management and control/ unless statute pro"ides other'ise )reditors generally *ollo' management and control o* de&tor 9 states/ )- is one o* them ; e"ery other state is a common la' marital property state and *ollo's all o* the rules set out a&o"e 2resumption: all property ac(uired or possessed during marriage T community property )lassi*ications: )ommunity: earnings during marriage or property &ought 'ith earnings during marriage )- allo's community property 'ith right o* sur"i"orship ,eparate: ac(uired &e*ore marriage or during marriage &y gi*t/ de"ise or descent )-: income *rom separate property ac(uired during marriage still separate 4i"orce: E(ual di"ision in many states #ther'ise/ loo= to classi*ication and a'ard accordingly 4eath: Hntestacy: normally all goes to sur"i"ing spouse/ &ut sometimes shared 'ith children <ill: decedent may con"ey W o* community property to a 3rd party and all o* separate property +o *orced or electi"e share Hssues at death or di"orce: -sset changes *orm: tracing re(uired )ommingling in &an= accounts: tracing re(uired -sset ac(uired o"er time 'ith part community property and part separate and then asset appreciates 3 jurisdictional approaches 1. Hnception o* title determines a. :As insurance policy starts &e*ore marriage ; premiums 3= &e*ore/ 7= a*ter a. 2olicy names son8 'i*e gets none 1. Time o* "esting > 'hen you actually get legal title a. -t time o* death/ 'i*e gets all &ecause title not "ested until death there*ore community property &. H* itAs a mortgage situation/ some states "est title at inception o* mortgage/ others at end o* payment 1. 2ro rata > )a. 2art community and appreciation is di"ided in hal*/ 'ith separate part going to

14

that spouse &. :al* o* 7FG o* community property goes to son and W to < c. ,on gets 35G Z 3FG T 55.FG Reim&ursement claims *or contri&utions made to an asset ; allo'ed/ &ut degrees not property Transmutation: agreement to change classi*ication o* property 1urden is on the party trying to pro"e property is separate

&AN &OR AN TENANT

%ease ". licensee %ease: exclusi"e right to possession and must &e in 'riting i* longer than one year %andlord has no lia&ility *or personal injury %icensee: right to use %andlord has duty o* due care to pre"ent injuries Re"oca&le 6actors: licensor retain =eyL 6ree accessL Right to enter *or repairsL 4o they li"e in the &uildingL 4oormanL )leaning ser"icesL )an &e mo"ed at 'ill o* larger entity8 greater control o"er licensee $ypes of tenancies 1. Term o* years$tenancy *or years a. 4uration: 6ixed time &. )reation: &y agreement8 landlord has re"ersion and perhaps right o* entry$po'er o* termination c. Termination: expiration o* stated time period8 &reach8 surrender &y tenant8 release &y landlord8 condemnation8 expiration o* landlordAs estate 2. 2eriodic tenancy a. 4uration: inde*inite term 'ith repeating periods until either party terminates 'ith proper notice &. )reation: &y agreement8 landlord gi"es possession and tenant pays period rent8 holdo"er tenant 'ith landlordAs consent to remain8 possession under a "oid lease 'ith periodic payments c. Termination: common la' re(uires 5 months notice *or year to year and one *ull period *or less than year8 &y statute 3F days is typical re(uirement i. 0ust terminate on *inal day o* period not in the middle ii. Jntimely notice: 1. Hne**ecti"e: must gi"e notice again8 #R 2. E**ecti"e at the earliest possi&le date restatement! 3. Tenancy at 'ill ; either party can terminate at 'ill 'ithout notice a. 4uration: continues so long as &oth landlord and tenant desire8 no *ixed term or successi"e periods. &. )reation: agreement o* parties8 ta=ing possession 'ith consent o* o'ner8 entry into possession under "oid lease prior to ma=ing periodic rental payments c. Termination: )% &y either party 'ithout *ormal notice8 i* landlord con"eys underlying *ee8 i* tenant tries to assign interest8 on death o* either 4. Tenancy at su**erance: :oldo"er tenant
15

4uration: until demand *or possession &y landlord or election to create a ne' tenancy &. )reation: 'here tenant right*ully enters into possession/ &ut 'rong*ully remains c. Termination: no tenancy to terminate8 landlord must elect to treat holdo"er as a i. Trespasser and sue *or possession e"iction!8 some jurisdictions allo' the landlord to reco"er dou&le or tre&le rent *or period o* holdo"er #R ii. +e' tenant express or implied to create a ne' tenancy ; generally a periodic tenancy8 landlord may demand di**erent rent
a.

#ssi(nment or sublease3 T'o -pproaches to 4ecide: -ll or less than all trans*erredL Hntent o* the partiesL @ar&er rule! Right o* Re>entryL 0inority treats as a su&lease/ &ut majority 'ill say itAs an assignment Bto - *or the &alance o* the leasehold term/ ho'e"er/ should - *ail to ma=e the rental payments/ the right to reenter and reclaim the premises is reser"edC %ia&ility to landlord: 2rimary: pri"ity o* estate possession! ,econdary: pri"ity o* contract ,u&lease: Tenant is lia&le to landlord *or *ull term &ecause has pri"ity o* estate and contract 'ith her since property re"erts &ac= to tenant &e*ore termination o* lease ,u&lessee is lia&le to tenant -ssignment: 2ri"ity o* estate: assignee is lia&le to landlord Reassignment &y assignee: pri"ity o* estate 'ith landlord ends8 not lia&le *or the su&se(uent assigneeAs &reach :o'e"er/ i* the *irst assignee speci*ically promised the landlord he 'ould &e lia&le *or rent he may &e o&ligated &ased on pri"ity o* contract 2ri"ity o* contract: tenant lia&le to landlord E"en i* landlord appro"es o* assignment/ they still ha"enRt released tenant *rom lia&ility unless they expressly do so 3rd party &ene*iciary *or su&lessee H* assignee expressly agrees to assume co"enants o* original lease &et'een landlord and original tenant then &y "irtue o* that promise/ landlord is indirectly &ene*itted &y that contract and is called a third party &ene*iciary 1ecause no' can ha"e t'o people that they can sue e"en though landlord is not in pri"ity o* contract in lease agreement 'ith T1 -llo's landlord to sue T1 -ssignment )ourts 'ill narro'ly construe any lease that prohi&its Bassignment and trans*erC &ecause they a&hor restricting right to alienation H* the tenant/ in "iolation o* the lease/ creates an assignment 'ithout landlordRs permission/ that assignment is in"alid Hn a commercial lease only/ the landlord can only reject an assignment *or a commercially "alid reason minority "ie'/ modern trend!
15

6inancial responsi&ility >> credit/ etc.8 suita&ility and legality o* use8 need to alter premises8 nature o* occupancy > longtermL +oisyL8 good tenant mix e.g. one lead tenant/ donRt 'ant people competing 'ith each other!8 projected success &rand ne' &usiness! :igher rent +#T an accepta&le excuse )- a minority jurisdiction &ut parties can expressly say in contract that consent can &e ar&itrarily 'ithheld )ould argue unconsciona&ility &ut usually holds in minority jurisdictions 4umporAs rule H* a landlord has the right under contract to prohi&it an assignment 'ithout consent and the landlord grants that consent and does not expressly retain a right to o&ject to *uture assignments/ any assignment a*ter the *irst one 'ill &e e**ecti"e 0ajority/ &ut not recogni.ed in all jurisdictions

%reach :oldo"er tenant E"iction: ,el*>help: )ommon la'$minority: permitted English rule: all necessary and reasona&le *orce #nly peacea&le exercise o* right: might not e"en include changing the loc=s/ essentially no sel* help 0ajority: must resort to legal process 6E4 statutes: *orci&le entry and detainer statutes 0a=es it a criminal o**ense *or a party to *orci&ly oust another *rom possession o* real property 2ro"ides a judicial remedy *or a tenant that has &een 'rong*ully put out o* possession #*ten pro"ides landlord 'ith a summary judicial proceeding J4 statutes: unla'*ul detainer H* 6E4 didnRt contain pro"ision *or summary judicial proceeding *or landlord/ o*ten states 'ould enact J4 statutes ,ummary judicial proceedings: e"iction E"iction is a summary proceeding: allo's landlord to reco"er possession only/ no damages8 tenant only allo'ed to de*end as to possession 0odernly/ courts are letting condition o* the premises &e a de*ense *or possession TenantAs &reach as to condition 4uty to +ot )reate <aste: tenant cannot ma=e a change that a**ects a "ital and su&stantial portion o* the premises 4uty to Repair: in"oluntary$permissi"e 'aste There is only a duty to re&uild a property destroyed not &y an act o* the tenant 'hen it is expressly stated in the lease %a' o* 6ixtures: adding or remo"ing may create 'aste &ased on damages Hs it a *ixtureL #nly a trade *ixture may &e remo"ed 4uty to #ccupy 0ajority: no duty unless contractual promise or 'here rent is .ero &ased on share o*
17

&usiness pro*its! or merely nominally *ixed 0inority: court 'ill loo= at all the circumstances -&andonment Tenant (uits premises &e*ore end o* term ; treated as an o**er o* surrender %andlordAs options: -ccept and ta=e &ac= premises *or landlordAs account E(ui"alent to ma=ing an agreement 'ith the tenant to terminate )ourts excuse the ,tatute o* 6rauds pro&lem 4o nothing and do not accept 0ajority$modern "ie': this is not allo'ed ; 4uty to 0itigate and *ind su&se(uent tenant This may apply only to commercial leases/ or &oth Re>enter and re>let *or tenantAs account The original tenant still lia&le *or any short*all &et'een the original rent and the ne' tenantRs rent %a'/ in e**ect/ ma=es him or her an agent to su&let *or the original tenant H* landlord re>lets premises *or longer than the original term/ ser"es as a termination and not mitigation 3ery help*ul to gi"e tenant express notice that landlord is mitigating Termination &y condemnation 5th -mendment right to just compensation %andlord gets money Tenant may &e entitled to money i* rent is less than *air mar=et "alue o* the leasehold H* partial condemnation/ tenantAs rent is not a&ated under common la' 0inority allo's partial a&atement o* rent on pro rata &asis ,ecurity deposit ,tatutory re*orms pre"ent landlord a&use Jsually re(uire landlord to pro"ide 'ritten account *or security deposit usage 'ithin 3F days o* mo"ing out Covenants Hmplied )o"enant to 4eli"er %egal 2ossession -ll jurisdictions: no one else must hold paramount title Hmplied )o"enant to 4eli"er -ctual 2ossession -merican rule: landlord has no duty to oust 'rongdoer no implied co"enant to protect lessee against 'rong*ul acts o* strangers either &e*ore possession or a*ter! English rule 0ajority!: landlord has duty to deli"er actual possession 0easure o* damagesL 4i**erence &et'een rent reser"ed agreed upon! and reasona&le rental "alue ; no special damages allo'ed in this case )a"eat %essee %andlord has no duty except: ,hort term leases o* *urnished d'ellings 4uty to disclose latent de*ects 4uty to maintain common areas 4uty to underta=e care*ully any "oluntary repairs 4uty to a&stain *rom *raudulent misrepresentations as to condition
19

4uty to a&ate immoral conduct or other nuisances KdonAt go through exceptions/ only &ring up applica&le ones or say none apply Hmplied )o"enant o* ?uiet Enjoyment %andlord has duty not to inter*ere 'ith the tenantAs (uiet use and enjoyment o* the premises &y a physical or constructi"e e"iction &y landlord or someone holding paramount title -ll jurisdictions except +O recogni.e this co"enant #ctual eviction %andlord excludes tenant *rom entire leased premises Terminates tenantAs o&ligation to pay rent Partial actual eviction Tenant is physically excluded *rom only part o* the leased premises need not &e a su&stantial part! ,plit: stop paying rent majority! or a&atement o* rent Constructive eviction H* the landlord does an act or *ails to pro"ide a ser"ice that he has a legal duty to pro"ide/ and there&y ma=es the property uninha&ita&le/ the tenant may terminate the lease and may also see= damages 1reach must &e su&stantial The tenant must "acate the premises 'ithin a reasona&le time Tenant may &e re(uired to noti*y landlord *irst and gi"e reasona&le time to repair ,ome jurisdictions only Partial constructive eviction ,u&stantial/ important part o* apartment %andlord *ails to repair toilet particularly i* youR"e only got one!/ o&ligation to repair it -&atement o* rent ; 0ajority *or "alue o* piece ,top paying rent ; 0inority Nou ha"e to mo"e out Hllegal %ease Theory - lease o* unsa*e and unsanitary premises that "iolates the local housing code is deemed an illegal[and thus unen*orcea&le[contract/ allo'ing the tenant to 'ithhold rent &ut remain in possession. This doctrine 'as initially adopted &y some jurisdictions in the 1U5Fs and 1U7Fs/ &e*ore the de"elopment o* the implied 'arranty o* ha&ita&ility. <ould ha"e to &e at start o* lease and not something that occurred a*ter you mo"ed in <ould ha"e to &e the case that the rent is higher than the reasona&le rental "alue in order to reco"er damages H* condition is se"ere enough and *act pattern does not explicitly say that it "iolates the housing code you can pro&a&ly assume that it does "iolate it Hmplied <arranty o* :a&ita&ility 0ajority "ie' *or residential leases: landlord has duty to deli"er o"er and maintain premises that are sa*e/ clean and *it *or human ha&itation -pplies to latent and patent de*ects -pplies to de*ects present at outset o* lease as 'ell as su&se(uent deterioration Tenant must noti*y and gi"e reasona&le time *or repairs

1U

-pplies to residential leases Remedies Tenant may mo"e out and terminate the lease Tenant may ma=e repairs directly/ and o**set the cost against *uture rent o&ligations some states limit this to a *ixed amount! Tenant may reduce or a&ate rent to an amount e(ual to the *air rental "alue in "ie' o* the de*ects

2F